Narendra Kumar Dubey Vs. Family Planning Association of India and ors. - Court Judgment

Excerpt:
- madhya pradesh uchcha nyayalaya (khand nyaypeeth ko appeal) adhiniyam (14 of 2006)section 2 & m.p. general clauses act, 1957, section 12: [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] appeal to division bench against judgment of single judge - application for restoration/revival of letters patent appeal under clause 10 - held, the legal effect of the 1981 adhiniyam was that with effect from 1st july 1981, all appeals under clause 10 of the letters patent were abolished except appeals which were pending before high court on date immediately preceding date of commencement of 1981 adhiniyam on 1st july 1981. it will be clear from sub-section 92) of section 1 of the 2005 adhiniyam that the 2005 adhiniyam was to come into force with retrospective effect from first day of july, 1981 i.e., with effect from the date from which the appeals under clause 10 of the letters patent were abolished by the 1981 adhiniyam. it will be further clear from section 2 of the 2005 adhiniyam that under the 2005 adhiniyam, appeal was provided for only from a judgment and order passed by a single judge in exercise of original jurisdiction under article 226 of the constitution of india to a division bench comprising of two judges of the high court and no appeal was provided for from the judgment and order passed by a single judge of high court in exercise of any other jurisdiction of the high court. it will also be clear from section 4 of the 2005 adhiniyam that sub-section (1) of section 4 repealed the 1981 adhiniyam. therefore by the repeal of the 1981 adhiniyam by section 4(1) of 2005 adhiniyam, appeals under clause 10 of the letters patent against judgment and decree passed by the single judge in exercise of its jurisdiction under section 96 of the code of civil procedure would not be revived as 2005 adhiniyam does not provide for any such revival. a reading of section 12 of the m.p. general clauses act, 1957, would show that the legislature must expressly state that the repealed act is either wholly or partially revived. where an act is passed repealing a repealing enactment, it shall not be considered as reviving any enactment previously repealed unless words are added reviving that enactment. in the absence of any express or implicit provision in the 2005 adhiniyam providing for appeal from a judgment, decree or order passed by single judge under section 96 of c.p.c., to a division bench, by virtue of the repeal of the 1981 adhiniyam, appeal under clause 10 of the letters patent from a judgment and decree passed by single judge in exercise of appellate jurisdiction under section 96 of c.p.c., are not revived. - it is also contended that as fpai is discharging public duties, therefore, a writ of mandamus under article 226 will issue where a body like fpai is to be found committing breach of any statutory provision or public duty, the decisions of the supreme court, in case of andi mukta s. 4. after hearing counsel at length and going through memorandum of association, i am of the opinion that fpai cannot be termed 'state' or an authority within the meaning of article 12 for the reasons to follow :it is well settled that article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression 'state'.a wide enlargement of the meaning must be tempered by a wise limitation. ' (6) 'specifically, if a department of government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of government. as none of the tests laid down in international airport authority's case (supra) are satisfied in the present case, the fpai cannot be termed as 'state' or an authority within the meaning of article 12 of the constitution, hence, the decision of the supreme court in unni krishnan's case (supra) is distinguishable on facts and is of no help to the petitioner. ' the term 'authority' used in the context, must receive a liberal meaning unlike the term in article 12. article 12 is relevant only for the purpose of enforcement of fundamental rights under article 32. article 226 confers power on the high courts to issue writs for enforcement of fundamental rights as well as non-fundamental rights.orders.k. dubey, j.1. by this petition under article 226 of the constitution of india the petitioner has challenged the order dated 9-1-1995 (annexure-j) passed by the respondent no. 3 the honorary secretary, family planning association of india, jabalpur, directing the medical officer, urban family welfare centre, (ufwc), madanmahal, jabalpur not to take the petitioner, an ex-health assistant on job until and unless any further orders are received.2. shri s. k. mukherjee learned counsel for the respondents raised a preliminary objection that the family planning association of india (for short 'fpai') is a society registered under the societies registration act, 1860 and is also registered under the bombay public trust act, 1950 (bom xxix of 1950) bearing registration no. 3108 of 1954-55 is not 'state' under article 12 of the constitution, hence, is not amenable to writ jurisdiction.3. shri r. k. gupta, learned counsel for the petitioner submitted that fpai is 'state' under article 12, and to demonstrate that learned counsel took this court to the memorandum of association of fpai branch of jabalpur in particular clauses 2 and 3 of the aims and objects, and, contended that the fpai is discharging the governmental functions and is getting grant in aid from government. not only this, the appointment of staff and officers is made in accordance with the guidelines and terms and conditions of the guarantor whether by government or the headquarter. it is also contended that as fpai is discharging public duties, therefore, a writ of mandamus under article 226 will issue where a body like fpai is to be found committing breach of any statutory provision or public duty, the decisions of the supreme court, in case of andi mukta s.m.vs.j.m.s. trust v. v. r. rudani, (1989) 2 scc 691 and unni krishnan v. state of a. p., (1993) 1 scc 645 were pressed into service.4. after hearing counsel at length and going through memorandum of association, i am of the opinion that fpai cannot be termed 'state' or an authority within the meaning of article 12 for the reasons to follow :it is well settled that article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression 'state'. a wide enlargement of the meaning must be tempered by a wise limitation. it must not be lost sight of that in the modern concept of welfare state, independent institution, corporation and agency are generally subject to state control. the state control does not render such bodies as 'state' under article 12. the state control, however, vast and pervasive is not determinative. the financial contribution by the state is also not conclusive. the combination of state aid coupled with an usual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the state may largely point out that the body is 'state.' if the governmental operates behind a corporate veil, carrying out governmental activity and government functions of vital public importance, there may be little difficulty in identifying the body as 'state' within the meaning of article 12. (see chandar mohan khanna v. n.c.e.r.t., air 1992 sc 76.)5. to find out that when a company, body or a society can be said to be an instrumentality or agency of the government to fall within the expression 'state' within article 12, the supreme court, in case of ajay-hasia v. khalid mujib, air 1981 sc 487 has culled out six authoritative tests from its earlier judgment in international airport authority's case, air 1979 sc 1628 which are extracted thus :'(1) 'one thing is clear that if the entire share capital of the corporation is held by government it would go a long way towards indicating that the corporation is an instrumentality or agency of government.'(2) 'where the financial assistance of the state is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.'(3) 'it may also be a relevant factor.... whether the corporation enjoys monopoly status which is the state conferred or state protected.'(4) 'existence of deep and pervasive state control may afford an indication that the corporation is a state agency or instrumentality.'(5) 'if the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of government.'(6) 'specifically, if a department of government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of government.'6. admittedly the fpai is not a statutory body. it is a registered society under the societies registration act, 1860 which has it's own memorandum of association, the aims and object of which are :'iii aims and objectsthe association shall be non-profit making, non-party-political, and non-sectarian working without discrimination as to religion, creed, race or gender. it shall have the following aims and objects :1. to disseminate knowledge and education about, and to promote the adoption of, the practice of family planning for the advancement of basic human rights, family and community welfare, the achievement of a balance between population, resources and the environment, and the attainment of a higher standard and quality of life.2. to assist wherever possible in the national programme of family planning by undertaking to carry out various activities of a complementary, supplementary or innovative nature.3. to study and formulate policies and programme regarding the provision of measures for family planning, population control and allied subjects and place its considered views and advice before government and other agencies whenever appropriate.4. to undertake or promote studies and activities in regard to services, training, information, education and research programmes covering the demographic, sociological, psycho-social economic, medical and other relevant aspects of human fertility and its regulation, including methods of contraception, sterility and sub-fertility, sex and family life education, marriage counselling, population and environmental concerns.5. to organise conferences, seminars, training courses and other meetings and events whether local, national or international, in the furtherance of the aims and objects and allied subjects of the' association.6. to establish branches. projects and other types of units for the promotion of the aims and objects herein.7. to foster and develop contacts with other organisations engaged in similar types of work in india and abroad.8. to take any or all appropriate measures to further the aims and objects.'7. fpai discharges its functions and duties in accordance with rules and regulations and guidelines laid down by the parent body, known as international planned parenthood and women's development federation having its office at london. under a project allotted by the government of india for fpai it offers consultancy services for non-governmental organised societies (ngocs) 31 in number, which are provided technical assistance and funding which is evident from the brochure of fpai by title 'what it is what it does.' to achieve its objects fpai has branches in the country one of which is jabalpur branch, a voluntary organisation having its own memorandum of association in conformity and in line with the 'parent constitution' of the parent body, i.e. fpai, jabalpur branch had its membership according to its constitution, which is managed by the executive committee elected by its general body of ordinary members in conformity with the aims and objects, rules and policies of the association and directives of the all india council. (see; clause (c) 2.1 of rule 2 of the memorandum of association). thus, it is evident that state has no deep and pervasive control. the financial aid given by the state is only to the extent of rs. 5,46,000.00 while its total expenditure is rs. 27,08,967.00 which it gets from fpai international, headquarters, from donations and other sources enumerated in clause 3.2 of rule 3 of the memorandum of association which deals with funds and accounts. thus, the branch is not even fully financed by the state. as none of the tests laid down in international airport authority's case (supra) are satisfied in the present case, the fpai cannot be termed as 'state' or an authority within the meaning of article 12 of the constitution, hence, the decision of the supreme court in unni krishnan's case (supra) is distinguishable on facts and is of no help to the petitioner.8. coming to the contention of shri gupta placing reliance on andi mukta's case (supra) wherein it has been held that article 226 confers wide powers on the high courts to issue writs in the nature of prerogative writs, as under article 226, writs can be issued to 'any person or authority.' the term 'authority' used in the context, must receive a liberal meaning unlike the term in article 12. article 12 is relevant only for the purpose of enforcement of fundamental rights under article 32. article 226 confers power on the high courts to issue writs for enforcement of fundamental rights as well as non-fundamental rights. the words 'any person or authority' used in article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the state. they may cover any other person or body performing public duty. the form of the body concerned is not very much relevant. what is relevant is the nature of the duty imposed on the body. the duty must be judged in the light of positive obligation owned by the person to the affected party, no matter by what means the duty is imposed. if a positive obligation exists mandamus cannot be denied. suffice it to say that fpai does not perform any public duty or positive obligations, as discussed above, it is a voluntary organisation and is discharging its functions according to its aims and object contained in memorandum of association and constitution, therefore, no writ of mandamus can be issued under article 226.9. as a result of above discussion, the petition has to be dismissed as not maintainable. however, the petitioner, if so advised, may resort to the remedy against the action of termination of his employment by discontinuation under the provisions of the industrial disputes act, 1947 by raising an industrial dispute for its adjudication by tribunal or labour court of competent jurisdiction.10. accordingly, the petition is dismissed with no order as to costs.

Judgment:
ORDER

S.K. Dubey, J.

1. By this petition under Article 226 of the Constitution of India the petitioner has challenged the order dated 9-1-1995 (Annexure-J) passed by the respondent No. 3 the Honorary Secretary, Family Planning Association of India, Jabalpur, directing the Medical Officer, Urban Family Welfare Centre, (UFWC), Madanmahal, Jabalpur not to take the petitioner, an ex-Health Assistant on job until and unless any further orders are received.

2. Shri S. K. Mukherjee learned counsel for the respondents raised a preliminary objection that the Family Planning Association of India (for short 'FPAI') is a society registered under the Societies Registration Act, 1860 and is also registered under the Bombay Public Trust Act, 1950 (BOM XXIX of 1950) bearing registration No. 3108 of 1954-55 is not 'State' under Article 12 of the Constitution, hence, is not amenable to writ jurisdiction.

3. Shri R. K. Gupta, learned counsel for the petitioner submitted that FPAI is 'State' under Article 12, and to demonstrate that learned counsel took this Court to the Memorandum of Association of FPAI Branch of Jabalpur in particular clauses 2 and 3 of the aims and objects, and, contended that the FPAI is discharging the Governmental functions and is getting grant in aid from Government. Not only this, the appointment of Staff and Officers is made in accordance with the guidelines and terms and conditions of the guarantor whether by Government or the headquarter. It is also contended that as FPAI is discharging public duties, therefore, a writ of mandamus under Article 226 will issue where a body like FPAI is to be found committing breach of any statutory provision or public duty, the decisions of the Supreme Court, in case of Andi Mukta S.M.VS.J.M.S. Trust v. V. R. Rudani, (1989) 2 SCC 691 and Unni Krishnan v. State of A. P., (1993) 1 SCC 645 were pressed into service.

4. After hearing counsel at length and going through Memorandum of Association, I am of the opinion that FPAI cannot be termed 'State' or an authority within the meaning of Article 12 for the reasons to follow :

It is well settled that Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression 'State'. A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern concept of welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as 'State' under Article 12. The State control, however, vast and pervasive is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an usual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is 'State.' If the Governmental operates behind a corporate veil, carrying out Governmental activity and Government functions of vital public importance, there may be little difficulty in identifying the body as 'State' within the meaning of Article 12. (See Chandar Mohan Khanna v. N.C.E.R.T., AIR 1992 SC 76.)

5. To find out that when a company, body or a society can be said to be an instrumentality or agency of the Government to fall within the expression 'State' within Article 12, the Supreme Court, in case of Ajay-Hasia v. Khalid Mujib, AIR 1981 SC 487 has culled out six authoritative tests from its earlier judgment in International Airport Authority's case, AIR 1979 SC 1628 which are extracted thus :

'(1) 'One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.'

(2) 'Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with Governmental character.'

(3) 'It may also be a relevant factor.... whether the corporation enjoys monopoly status which is the State conferred or State protected.'

(4) 'Existence of deep and pervasive State control may afford an indication that the corporation is a State Agency or instrumentality.'

(5) 'If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.'

(6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government.'

6. Admittedly the FPAI is not a statutory body. It is a registered society under the Societies Registration Act, 1860 which has it's own memorandum of association, the aims and object of which are :

'III Aims and Objects

The Association shall be non-profit making, non-party-political, and non-sectarian working without discrimination as to religion, creed, race or gender. It shall have the following Aims and Objects :

1. To disseminate knowledge and education about, and to promote the adoption of, the practice of family planning for the advancement of basic human rights, family and community welfare, the achievement of a balance between population, resources and the environment, and the attainment of a higher standard and quality of life.

2. To assist wherever possible in the national programme of family planning by undertaking to carry out various activities of a complementary, supplementary or innovative nature.

3. To study and formulate policies and programme regarding the provision of measures for family planning, population control and allied subjects and place its considered views and advice before Government and other agencies whenever appropriate.

4. To undertake or promote studies and activities in regard to services, training, information, education and research programmes covering the demographic, sociological, psycho-social economic, medical and other relevant aspects of human fertility and its regulation, including methods of contraception, sterility and sub-fertility, sex and family life education, marriage counselling, population and environmental concerns.

5. To organise conferences, seminars, training courses and other meetings and events whether local, national or international, in the furtherance of the Aims and Objects and allied subjects of the' Association.

6. To establish Branches. Projects and other types of units for the promotion of the Aims and Objects herein.

7. To foster and develop contacts with other organisations engaged in similar types of work in India and abroad.

8. To take any or all appropriate measures to further the Aims and Objects.'

7. FPAI discharges its functions and duties in accordance with rules and regulations and guidelines laid down by the parent body, known as International Planned Parenthood and Women's Development Federation having its office at London. Under a Project allotted by the Government of India for FPAI it offers consultancy services for non-governmental Organised societies (NGOCs) 31 in number, which are provided technical assistance and funding which is evident from the brochure of FPAI by title 'What it is what it does.' To achieve its objects FPAI has branches in the country one of which is Jabalpur Branch, a voluntary organisation having its own Memorandum of Association in conformity and in line with the 'Parent Constitution' of the parent body, i.e. FPAI, Jabalpur Branch had its membership according to its constitution, which is managed by the Executive Committee elected by its general body of ordinary members in conformity with the aims and objects, rules and policies of the association and directives of the All India Council. (See; clause (c) 2.1 of Rule 2 of the Memorandum of Association). Thus, it is evident that State has no deep and pervasive control. The financial aid given by the State is only to the extent of Rs. 5,46,000.00 while its total expenditure is Rs. 27,08,967.00 which it gets from FPAI international, headquarters, from donations and other sources enumerated in clause 3.2 of Rule 3 of the Memorandum of Association which deals with funds and Accounts. Thus, the Branch is not even fully financed by the State. As none of the tests laid down in International Airport Authority's case (supra) are satisfied in the present case, the FPAI cannot be termed as 'State' or an authority within the meaning of Article 12 of the Constitution, hence, the decision of the Supreme Court in Unni Krishnan's case (supra) is distinguishable on facts and is of no help to the petitioner.

8. Coming to the contention of Shri Gupta placing reliance on Andi Mukta's case (supra) wherein it has been held that Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs, as under Article 226, writs can be issued to 'any person or authority.' The term 'authority' used in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person to the affected party, no matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. Suffice it to say that FPAI does not perform any public duty or positive obligations, as discussed above, it is a voluntary organisation and is discharging its functions according to its aims and object contained in memorandum of association and constitution, therefore, no writ of mandamus can be issued under Article 226.

9. As a result of above discussion, the petition has to be dismissed as not maintainable. However, the petitioner, if so advised, may resort to the remedy against the action of termination of his employment by discontinuation under the provisions of the Industrial Disputes Act, 1947 by raising an industrial dispute for its adjudication by Tribunal or Labour Court of competent jurisdiction.

10. Accordingly, the petition is dismissed with no order as to costs.